Karnataka High Court
Smt Lakshmidevi vs The State Of Karnataka on 26 April, 2019
Equivalent citations: AIRONLINE 2019 KAR 1497, AIRONLINE 2019 KAR 410, 2019 CRI LJ (NOC) 520 2019 (3) AKR 140, 2019 (3) AKR 140
Author: K.Natarajan
Bench: K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF APRIL, 2019
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.210 of 2011
BETWEEN
1. SMT. LAKSHMIDEVI,
W/O SRI R.K. ASHOK KUMAR,
AGED ABOUT 60 YEARS,
FORMERLY AT No.C-26,
SHANBAGH KRISHNAPPA LANE,
CHIKKAMAVALLI,
BANGALORE - 560 004.
NOW RESIDING AT 56/4,
UPSTAIRS, 1ST BLOCK, 2ND MAIN,
THYAGARAJANAGAR,
BANGALORE - 560 028.
2. A.G. SATHYANARAYANA,
S/O SRI A.L. GOVINDARAJA SETTY,
AGED ABOUT 54 YEARS,
RESIDING AT C-26,
S.K. LANE, CHIKKAMAVALLI,
BANGALORE -560 004.
... PETITIONERS
(BY SRI B.S. SRIDHAR, ADVOCATE FOR
SRI C.G. GOPALASWAMY, ADVOCATE)
AND
THE STATE OF KARNATAKA,
BY COD,
BANGALORE.
... RESPONDENT
(BY SRI S.T. NAIK, HCGP)
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT DATED 30.10.2010 PASSED BY THE PRESIDING
OFFICER, FTC-VIII, BANGALORE CITY IN CRL.A.No.230/2002
AND ORDER DATED 23/26.03.2002 PASSED BY THE IV
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE
IN C.C.No.1160/1982.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 07.01.2019 AND
COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This Revision Petition is filed by the petitioners- accused Nos.2 and 3 in C.C.No.1160/1982 for having convicted and sentenced to undergo imprisonment for the offences punishable under Section 408, 420, 477A and 120B of IPC. Being aggrieved by the same, these petitioners prefer the appeal before the Fast Track Court- VIII, Bengaluru City in Crl.A.No.230/2002 which came to be dismissed and the judgment of conviction and sentence passed by the trial Court has been confirmed vide judgment dated 30.10.2010. Being aggrieved by the same, the petitioners are before this Court. 3
2. Heard the arguments of learned counsel for the petitioners as well as learned High Court Government Pleader.
3. The rank of the parties before the trial Court is retained for the convenience.
4. The facts of the prosecution case is that the accused No.1 being the Manager (not the petitioner herein) and accused No.2 (petitioner No.1) being the Ledger clerk during the period 13.01.1969 to 28.03.1980 and accused No.2 being the ledger clerk during 04.04.1974 and 06.01.1977 at Vysya Co-operative Bank, V.V.Puram Branch, Bengaluru had dominion over the accounts and funds of the bank had conspired together with accused No.3 (petitioner No.2 herein) who is the account holder to cheat the bank and caused wrongful loss to the bank. Accused No.2 issued FD receipt bearing No.5584 for Rs.4,500/- dated 08.06.1996 / 28.07.1976 without receipt of the amount and falsified the account in cashiers scroll, 4 managers scroll and facilitated accused No.3 to withdraw the amount of Rs.4,578.75/- on 20.09.1976. The said amount has been misappropriated for their personal gain. Thereby, they committed breach of trust for the offences punishable under IPC as stated supra
5. Further, the case of prosecution is that subsequently PW.1-N.S.Manohar was appointed as Administrative Officer of the bank, he found the audit accounts for the year 1977-1978 was in arrears and got audited through the auditor one Mr. Raghupathi and obtained the report as per Ex.P1 and it was revealed that the accused Nos.1 and 2 had cheated the bank in collusion with the accused No.3 for the tune of Rs.4,578.75/-. Further, the said Manager obtained authorization letter from Deputy Registrar, Co- operative Society and lodged the complaint. Thereafter, the Central Police registered the case, then the COD Police investigated and filed charge sheet against the accused. The accused obtained anticipatory bail and released by the trial Court. Later, the charges were framed against the 5 accused for having pleaded not guilty and claims to be tried. Then, the prosecution examined 14 witnesses as PWs.1 to 14 and got marked 65 documents and then the accused were also examined under Section 313 of Cr.P.C. The accused case is one of the total denial, but not entered into any defence. After hearing the arguments, the learned trial Judge found the accused guilty and convicted and sentenced for 6 months and to pay a fine of Rs.500/- each in default, to undergo simple imprisonment for one month for the offence punishable under Section 408 of IPC; further sentence to undergo 4 months and to pay a fine of Rs.500/- each in default, to undergo simple imprisonment for one month for the offence punishable under Section 420 of IPC; further to pay a fine of Rs.500/- each in default to undergo simple imprisonment for one month for the offence punishable under Section 477A of IPC and fine of Rs. 500/- each in default to undergo simple imprisonment for one month for the offence punishable under Section 120B of IPC.
6
6. The counsel for the petitioner contended that the petitioners are innocent, they have not committed any offence and especially the accused No.2-petitioner No.1 not at all committed any offence, she was only a ledger clerk but not the cashier. The accused No.3-petitioner No.2 was said to be beneficiary, but he was not at all received the said amount of Rs.4,578/- and no payment was made to attract Section 420 of IPC. No commonality in the offence in cheating and in criminal breach of trust. Even assuming that the findings of the impugned judgment are correct, but the sentence imposed was disproportionate to the facts and circumstances. They have faced the trial for more than a decade and half years. They suffered mental and physical agony. They also entitled for benefit under Section 360 of Cr.P.C. Even otherwise, the evidence of PWs.6, 8 and 11 to 14 were only incidental. These aspects were not appropriately considered by the trial Court. The evidence of PW.1 was 7 hearsay and the evidence of PW.2 was un-reliable. The petitioner No.2 said to be beneficiary, but no record reveals anything about fixed deposit account. PW.9 was the cashier who is dominion over the account. Accused Nos.2 and 3 were nothing to do with the said offence. Therefore, prayed for setting aside the judgment of conviction and sentence passed by the trial Court.
7. Per contra, the learned High Court Government Pleader contended that the accused No.1 is the Manager having entire control over all the ledgers including the cashier scroll and ledger scroll. The accused No.2- Lakshmidevi who is the ledger clerk dominion over the accounts during the relevant period. Accused No.2 in collusion with accused No.3 issued FD receipt without receiving any money from accused No.3 and they released the FDR for Rs. 4,578/-. Thereby, they cheated the bank, misappropriated the money of the bank for their personal gain. The evidence of the witnesses clearly spoken about the same. The evidence are based upon documentary 8 evidence. Therefore, it is contended that there is no illegality in findings of both the Courts and there is no disproportionate in respect of awarding any sentence. Therefore, prayed for dismissing the revision.
8. Upon hearing the arguments of both learned counsel, on perusal of the lower court records, it is admitted fact, the accused No.1 (not the petitioner) was the Manager of the Vysya Co-operative Bank, V.V.Puram Branch, Bengaluru and the petitioner No.1-Lakshmidevi was the ledger clerk during the relevant period. They worked in the Vysya Co-operative Bank, V.V.Puram Branch, Bengaluru. It is also not in dispute, the PW.1-Manohar has been appointed as Administrative Officer and he has obtained the audit report from one Raghupathi as per Ex.P1. During the audit, it was reveled the issuance of FD receipt in the name of accused No.3 without receiving any amount from him and there was no entry in the ledger for having receipt of money from accused No.3 for the tune of Rs. 4,500/-. 9
9. Ex.P1 goes to show that there were withdrawals in the name of number of persons and accused No.1, the Manager himself signed, received and withdrawn the amount from the bank.
10. Though the complaint came to be filed by PW.1 only based upon the audit report-Ex.P1. The evidence of PW.1 clearly corroborates with the audit report. Based upon Ex.P1, PW.1 filed the complaint as per Ex.P3. Ex.P2 is the authorization letter obtained by PW.1 from the Deputy Registrar of Co-operative Society. In para 33(2)(c) of the Ex.P1 is the relevant entry in the audit report in respect of the amount misappropriated by this accused-petitioner. Ex.P4 is the ledger extract, which is the FD receipt said to have been issued by the accused for Rs.4,500/-. Ex.P34 is the specimen handwriting found in the FD receipt belongs to accused No.1. In Ex.P35, similar receipt belongs to accused No.2 (this petitioner herein). Ex.P36 is the copy of another FD receipt which was given to accused No.3. Ex.P37 is another copy which was retained by accused 10 No.4. Ex.P38 is the copy which was signed by the President of the bank. Ex.P39 is another copy which was signed by accused No.6. Ex.P40 is the extract of the ledger entry made by the accused No.2 (the first petitioner herein) showing the entries in respect of FD receipt for Rs.4,500/- and it was shown that the said amount was payable by three months on expiring of 18.09.1976 with 7% interest. In column 1, it was shown on 28.07.1976, the amount said to have received but in the deposit column they have not shown the amount was actually received from accused No.3 but in Ex.P40, 41, 42, 43, 44 and 45, they have shown in the ledger by mentioning Rs.4,500/-. PW.2, Raghupathi, who is the auditor who audited the accounts of the bank for the relevant period 1977-1978 and gave report as per Ex.P1, he has found out mismanagement entries made for issuance of FD receipt and there was no cash received from the accused No.3 and evidence of PW.2 clearly goes to show that infact the FD receipt was issued in the name of accused No.3, 11 but on personal verification, the accused No.1-Manager himself affixed the signature in the name of accused No.3. PW.3-Gangadhara Shetty, who is the Secretary of the Co- operative Bank during the relevant time and he was clearly stated on the request of the Manager, he affixed the signature on Ex.P11, the FD receipt and he has stated that he has not verified the accounts but the Manager i.e., accused No.1 informed that everything is correct. On the basis of assurance of accused No.1, he has signed Ex.P11 for the issuance of amount to accused No.3-FD receipt account holder.
11. PW.4-Lakshminarayana, who is the Director of Vysya Co-operative Bank, V.V.Puram Branch, Bengaluru and President of the bank during the relevant time also identified Ex.P11 and signature of the Honorary Secretary of the bank and has stated that he has affixed his signature.
12
12. PW.5-K.S.Chandrashekar Gupta, who is Vice President, also identified Ex.P11, the FD receipt.
13. PW.6-N.S.Gopal Rao, who was the Assistant Director of Co-operative Bank, audited for the year 1979-1980 and he commenced the audit and audit related to the FD accounts and he has prepared the observatory notes and handed over the same to his successor, Raghupathi and in turn, Raghupathi submitted the audit report as per Ex.P1.
14. PW.7-Devanna was the P.S.I at COD, Bengaluru who conducted further investigation, collected the materials, seizure ledger entries also obtained the specimen signature of the accused and sent for the opinion of handwriting expert. He has identified the specimen signature of accused No.1 as per Exs.P16 to 21. The specimen signature of the accused No.2-Lakshmidevi as per Exs.P22 to 27 and specimen signature of accused No.3 as per Exs.P28 to 33 and specimen handwriting of accused No.2 as per Exs.P34 to 39. Another set of the handwriting 13 of accused No.2 as per Exs.P40 to 45. He also received specimen handwriting of accused No.2 as per Exs.46 to 51, specimen handwriting of accused No.2 in respect of Manager's Scroll Exs.P52 to 57. He speaks about sending these documents to the handwriting expert. Nothing has been elicited to disbelieve the evidence of these witnesses.
15. PW.8-G.V.Channaraja Urs, Dy.S.P., COD, Bengaluru also conducted the investigation in respect of FD receipt in question, he has collected sample signature of accused No.3 and also accused Nos.1 and 2 in respect of FD receipt No.5584. He also speaks about obtaining the signature and the handwritings of the other accused which is not relevant to this case.
16. PW.9-M.L.Narayan was the cashier in the said bank during the period 1968 to 1977. He also stated that accused No.1-Nanjundeshwara Gupta was the Manager and the accused No.2-Lakshmidevi was the ledger clerk during the relevant period. He has identified that the FD 14 receipt-Ex.P11 contains the handwriting of accused No.2, signature of accused Nos.1 and 2. He also identified the handwriting of accused No.2 in ledger folio (LF) as per Ex.P5. He also identified the handwriting and signature of accused Nos.1 and 2 in the payment register for having received Rs.4,578/- by accused No.3 but in fact, the said signature was affixed by accused No.1, the Manager himself. The entry in the documents is marked as Ex.P6.
17. In the examination-in-chief, this witness admits that he used to collect the cash from the customer and gave a challan and to make necessary entries in the cashier's scroll. While making the payment, he used to collect the voucher from the Manager, if there is endorsement for payment. He used to record the voucher number and make payment after collecting the token from the customer. The evidence of this witness was not controverted by the accused by cross examining this witness.
15
18. PW.10-Jagannathachar was the Senior Assistant in the said bank. He has identified the signature of the accused Nos.1 and 2 and also handwriting of accused No.2 and one Narayan. The said documents are marked as Exs.P4A, 6C and 8B. There is nothing elicited to disbelieve the evidence.
19. PW.11-P.Janardhanachar who was working at COD on deputation as Senior Auditor of Co-operative Society and he has also conducted the audit for the years 1976- 1977 and 1977-1978. Since PW.2 has already given the evidence in respect of auditing, therefore, his evidence is not much relevant.
20. PW.12-T.D.Rama Rao, was another worker working in the Co-operative Society. He was present while getting the specimen signature and handwriting of the accused Nos.1 and 2. He has identified the signature in Exs.P16 to P63. There is no cross-examination in respect of obtaining 16 the signature and handwritings of the accused by the Investigating Officer.
21. PW.13-M.L.Sharma was the Deputy Government examiner of question documents, Simla and the handwriting expert. He has compared the specimen signature, handwriting of accused No.2, specimen signature of accused No.1 with the disputed handwriting and signatures of the accused and gave opinion as per Ex.P14. Their evidence also not impeached by the learned counsel for the accused to disbelieve the evidence. As per his evidence, the specimen handwriting in Ex.P11 pertaining to Lakshmidevi and on Exs.P34 to 39 and specimen handwriting of Lakshmidevi on Exs.P40 to 45, he gave the opinion as per Ex.P14 and stated that the specimen signature and handwritings of the accused Nos.1 and 2 found in Ex.P11.
22. PW.14-Giriyappa, Sub Inspector of Police, Central Police Station, Bengaluru who received the complaint and 17 registered the case against the accused and thereafter, handed over the investigation to the COD Police. Based upon the evidence of the prosecution, witnesses and the documents, the prosecution is able to prove that the accused Nos.1 and 2 in collusion with accused No.3 created the FD receipt for Rs.4,500/- in the name of accused No.3 and they issued the receipt for releasing the amount of Rs.4,578.75/-. This fraud came to be noticed in the audit report. Thereby, the prosecution was successful in proving the charges against the accused persons for creating the documents, FD receipt without receiving the money and also released the amount and it was personally gained by accused No.1. Even though the accused No.2, ledger clerk known fully well that no amount received is from accused No.2, but made an entry in the ledger book by showing the receipt for Rs.4,500/- and affixed her signature for releasing the said amount on the maturity date in the name of accused No.3 (petitioner No.2). 18 Thereby, they committed the offences punishable under Section 408, 420, 477A and 120B of IPC.
23. The trial Court after considering the evidence, recorded the findings and rightly came to the conclusion and convicted the accused. Even the First Appellate Court re-appreciated the evidence on record and rightly dismissed the appeal. I do not find any error or illegality in the findings of the trial Court or Appellate Court for having committed the offences by the accused persons during the tenure of accused No.1 as Manager. Accused No.2 being the ledger clerk having dominion for the books of accounts, falsified the documents in the name of accused No.3 and they have got released the amount of Rs.4,578.65/- thereby, committed the criminal breach of trust and misappropriate funds for that personal gain beyond reasonable doubt.
24. Now coming to the alternative arguments addressed by the learned counsel for the petitioners that the accused 19 No.1 is not before the Court, accused No.2-Lakshmidevi, now aged about more than 70 years, she was litigating the case from the year 1980 almost nearly 40 years suffered mental agony due to long pending litigation. Accused No.3- Petitioner No.2 is also more than 60 years. The trial Court ought to have extended the benefit of releasing the accused on due admonition but not considered and prayed for releasing the accused by extending the benefit under the Probation of Offenders Act, 1958. Though the trial Court not considered these aspects before passing the judgment, but it is pertinent to note that these accused persons not only committed only one offence in respect of accused No.3, but there are so many cases. They have been created the documents, misappropriated the amount of the bank which is being the public money belongs to the customer of the bank and caused huge loss.
25. Therefore, extending the benefit of releasing the accused on due admonition cannot be acceptable. However, by considering the long pending litigation for 20 almost 40 years and alleged offence said to have committed in the year 1977-1978 about almost more than 45 years back, now, the petitioners are Senior Citizens, aged more than 60 to 70 years. Accused No.1 is the main accused, who was the Manager of the bank is not before this Court. Accused No.2 has worked with accused No.1 as a ledger clerk, she might have acted on the instruction of accused No.1 and accused No.3 only facilitated by affixing his signature in the FD receipt, but in fact, the amount was actually received by accused No.1 who is the Manager of the bank by affixing the signature of accused No.3. Therefore, considering the facts and circumstances, accused Nos. 2 and 3 helped accused No.1 in the commission of offence.
26. The learned counsel for the petitioner also produced the copy of the order in Crl.R.P.No.1187/2005 dated 24.02.2012 wherein this Court extended the benefit of the Probation of Offenders Act, 1958 in favour of the same petitioner. This Court already extended the benefit in the 21 first case. Therefore, I feel that the petitioner is not entitled in same benefit in other cases. However, by looking to facts and circumstances of the case, considering the age of the petitioner No.1, who is a woman and petitioner No.2 also senior citizen, suffered the ordeal of the litigation for almost more than 35 years instead of sentencing the petitioner for imprisonment, if fine is imposed that will meet the ends of justice. Accordingly, I pass the following order:
i) The petition is allowed in-part.
ii) The judgment of conviction passed by
the trial Court in C.C.No.1160/1982 is
upheld and the sentence of
imprisonment is modified into only fine.
iii) The petitioners shall pay a fine of Rs.2,000/- each, in default, to undergo simple imprisonment for 15 days for the offence punishable under Section 408 of IPC;
22They shall pay a fine of Rs.2,000/- each in default, to undergo simple imprisonment for 15 days for the offence punishable under Section 477A of IPC;
They shall pay a fine of Rs.2,000/- each in default, to undergo simple imprisonment for 15 days for the offence punishable under Section 420 of IPC and They shall pay a fine of Rs.1,000/- each in default, to undergo simple imprisonment for one week for the offence punishable under Section 120B of IPC.
The Registry is directed to transmit the LCR to the concerned Court immediately.
Sd/-
JUDGE GBB